Wayne Graham Realty Ltd v Brook
[2016] NZHC 1135
•27 May 2016
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CIV-2016-412-000022 [2016] NZHC 1135
BETWEEN WAYNE GRAHAM REALTY LIMITED
Appellant
AND
KRISTINA-LORRAINE BROOK Respondent
Hearing: 18 May 2016 Appearances:
M E Parker for Appellant
D Tobin for RespondentJudgment:
27 May 2016
JUDGMENT OF DUNNINGHAM J
[1] This is an appeal of a District Court costs decision awarding 2B costs to the appellant. The key complaint by the appellant is that the decision was made peremptorily, without a proper opportunity to provide the Court with further evidence and submissions to support the appellant’s claim that increased or indemnity costs should be awarded.
[2] The respondent says, however, the appellant could have anticipated that costs would be dealt with on the date in question and should have prepared accordingly. In any event, the decision made by the Judge was one he was entitled to reach in the exercise of his discretion and the appellant cannot demonstrate that the exercise of
his discretion was plainly wrong.
WAYNE GRAHAM REALTY LIMITED v BROOK [2016] NZHC 1135 [27 May 2016]
[3] The issues to be determined are therefore:
(a) whether the Judge erred in his determination of costs in the sense of acting on a wrong principle, failing to take into account a relevant matter or taking into account an irrelevant one;1 and
(b) if he was in error, whether the appellant’s claim for increased or
indemnity costs is warranted.
Background to the costs claim
[4] The proceedings concerned a purchase of a property by the respondent, Ms Brook. The appellant was the real estate agent in charge of the sale for the vendor. Ms Brook sued the vendor and the real estate agent.
[5] On the morning of 7 August 2015, the parties attended a judicial settlement conference. The matter did not settle at the conference. However, as is often the case, negotiations continued through the afternoon. Ms Cunninghame, the solicitor for the vendor, explains in her affidavit evidence that she telephoned Ms Brook’s lawyer and asked if her client would accept a joint offer of settlement from the defendants of $27,500. That offer eventually received a response “there is no movement from $30,000”, being the amount Ms Brook was requesting. Ms Cunninghame then responded by email saying “based on the earlier position taken by [the real estate agent] … we will be able to get to a joint settlement offer of
$30,000. This will be in full and final settlement of all matters between the parties”. Ms Brook’s lawyer responded by email saying “I have verbal confirmation that my client will accept this offer of $30,000 in full and final settlement between the parties”, and “will sort details on Monday”.
[6] Ms Cunninghame subsequently advised the real estate agent’s lawyer that the
matter had settled. Furthermore, Ms Brook’s lawyer advised the Court on
10 August 2015 that “agreement has been reached” and Registry staff recorded that
either a notice of discontinuance would be filed or it would be deemed to be discontinued on 21 September 2015 as provided for in r 7.3(7).2
[7] Ms Cunninghame emailed Ms Brook’s solicitors on Monday, 10 August, asking if they could circulate a draft settlement agreement. She was advised that counsel would deal with this on his return to the office on Wednesday. However, instead, Ms Brook’s lawyer emailed the defendants’ lawyers on Friday, 14 August, saying:
I have had a long meeting with Ms Brook today and advise she is not prepared to settle at $30,000. I accept this is contrary to the indication given last Friday but:
(a) it is clear there was not a concluded settlement as the discussions were dependent on a settlement agreement being signed; and
(b) she is adamant she wishes to continue with the proceedings.
[8] The defendants then arranged for the sum of $30,000 to be transferred to the trust account of Ms Brook’s solicitors but on the basis that it could only be paid out to Ms Brook if it was accepted it was in “full and final satisfaction of [Ms Brook’s] claim” against the defendants.
[9] What followed was a sequence of correspondence, which at times was testy, where the parties set out their conflicting positions on whether a binding settlement had been reached. Ms Brook’s position was that it was not a concluded settlement agreement as it was dependent on a suitable agreement being signed. What had been achieved was “simply an agreement to enter into a settlement agreement, and there was no consideration for that agreement”. The two defendants, however, said that the execution of a suitably worded agreement was not a condition of the creation of the binding agreement, but was simply intended to record the arrangement more formally. As Ms Brook made no effort to respond to the draft agreements they had subsequently proffered, it appeared she had simply regretted her decision to conclude a settlement at $30,000 and was wrongfully repudiating it.
[10] On 24 November 2014, the defendants applied to strike out Ms Brook’s statement of claim and sought indemnity costs or, in the alternative, increased costs on the application. The grounds on which those orders were sought were that:
(a) the claim and its continuation is an abuse of process, the matters having been settled by way of accord and satisfaction on
7 August 2015; and
(b)the plaintiff has acted vexatiously, frivolously, improperly or unnecessarily in continuing the proceeding, or in the alternative, that the claim lacks merit, in circumstances where the parties have agreed to settle.
[11] Shortly after this application was filed, counsel for Ms Brook advised that he was no longer acting. On 16 December 2015, her solicitors advised that Ms Brook was prepared to accept the $30,000 on the basis of the emails exchanged on
7 August 2015, but also on the basis the strike out application was to be discontinued at the same time, with no issue as to costs. That proposal was rejected on
18 December 2015, with the real estate agent’s lawyers saying that as Ms Brook was essentially consenting to the application “we see no reason why costs should not follow the event in the usual way”. Furthermore, they considered indemnity costs were appropriate, noting that just over $15,000 had accrued in costs since the date of the judicial settlement conference.
[12] Correspondence continued in mid January prior to the call-over of the strike out application on 20 January 2016. The real estate agent’s lawyers provided copies of the invoices for legal costs incurred since the judicial settlement conference and asked Ms Brook whether the orders sought in the strike out application could be agreed “in which case it would be sensible to file a joint memorandum in advance of the mention listed for 20 January stating that the only issue to be determined by the Court is the issue as to costs”. By that stage costs had amounted to $17,180.36.
[13] On 19 January 2016, the real estate agent’s lawyers arranged for the vendor’s
solicitor, Ms Cunninghame, to enter an appearance on behalf of both defendants at
the following day’s call-over and to seek confirmation that the proceeding could be struck out, with the only issue remaining concerning costs.
[14] Shortly after 4.00 pm on the same day, newly appointed counsel for Ms Brook served a notice of appearance consenting to the order striking out her claim, but stating that she wished to be heard on costs and opposed an award of indemnity costs or increased costs. In support of that position, he also filed and served an affidavit from Ms Brook. In that affidavit she gave evidence that “I never intended to settle for $30,000 which I regard as far too low. However, I have now received advice that a concluded agreement was reached on my behalf”. She opposed increased or indemnity costs on the basis that “I believe I have been let down by my counsel both in terms of the settlement agreement reached and the advice that I received after that”. She said she sought and was given advice by her then lawyer that there was no binding agreement and she believed that advice to be correct. She then obtained a second opinion on the advice of her solicitors and “unhappily realised that an agreement had been reached whether I liked it or not”. She concluded by saying that she accepted the defendants were entitled to costs but believed they should be scale costs only as she did not believe that she acted other than in “good faith reliant on the advice that I received”.
[15] On 20 January 2015, as agreed, Ms Cunninghame appeared in the District Court at Dunedin for both her client, the vendor, and on agency instructions for the second defendant, the real estate agent. Her evidence is that when the matter was placed on the 20 January list, it was the defendants’ expectation that directions would be made at the call-over to deal with the remaining issues, depending on what was filed by Ms Brook. She explains that her client was not seeking costs from Ms Brook and she “would not have agreed to act as agent for [the real estate agent] had [she] anticipated that submissions on costs would have been required on
20 January 2016”.
[16] She explains that the Judge recorded that the claim was struck out and wanted to deal with costs then and there. She sought a timetable for submissions on costs to be filed, and for costs to be determined on the papers. However, the Judge was not prepared to consider this. Her explanation that she did not have instructions from the
second defendant’s lawyers on submissions regarding costs did not change the Judge’s view. He said that if counsel wanted to argue costs they should have been in Court that day. He said that he would award costs on a scale basis because, in his view, all of the lawyers involved were responsible for what happened.
[17] The decision on costs reflected that summary disposal of the costs issue. It occupied two paragraphs:
[2] In relation to the issue of costs I note that Ms Cunninghame on behalf of Ms Campbell does not seek costs. I note that the second defendant, through solicitors (or counsel) Parker Cowan, wishes to seek costs on an indemnity basis (as I understood from what I read on the file). Here the solicitors have seen fit not to attend other than through the good offices of Ms Cunninghame.
[3] In my view when I have regard to the overall events in what occurred following the judicial settlement conference, I consider that the second defendant is entitled to costs against the plaintiff on a scale 2B basis, plus out of pocket disbursements. I order accordingly.
The grounds of appeal
[18] The notice of appeal claimed that the Judge erred in:
(a) failing to allow the appellant an opportunity to submit on the issue of costs;
(b)refusing to hear arguments on the basis upon which costs should be awarded;
(c) awarding standard costs in favour of the appellant rather than the order for indemnity or increased costs as sought; and
(d) failing to provide reasons for his decision.
Did the Judge err in any of the ways pleaded?
Did the Judge fail to allow the appellant an opportunity to submit on the issue of costs or refuse to hear arguments on the basis upon which costs should be amended?
[19] I consider the first two grounds of appeal together as they essentially address the same issue, which is whether the appellant was denied an opportunity to be heard on the issue of costs.
[20] The respondent says that the appellant was not denied the opportunity to be heard in relation to costs. Rather, the appellant was not given an adjournment, or the like, to put forward evidence and submissions on costs. The respondent considers the appellant had ample opportunity to put evidence on costs before the Court between filing the original notice of application to strike out the plaintiff’s statement of claim on 24 November 2015, and when the matter was called on 20 January 2016.
[21] The respondent says the appellant “tries to make much of having been told that the 20 January 2016 date was simply for mention”, saying that cannot excuse the failure to put evidence before the Court so that it could deal with either part of the application. The appellant knew from 16 December 2015, that the applicant accepted there was a concluded agreement and the only issue was as to costs. Furthermore, it is for the District Court to govern the efficient running of its own procedure, and the Court did no more than decide this was best done by dealing with costs on the day.
[22] The appellant says, however, the parties were told that the matter was listed for mention only and it was appropriate, in those circumstances, that Ms Cunninghame was instructed to appear in the Dunedin District Court on agency instructions. This approach was consistent with the objective in District Court r 1.3,
when counsel acting for the appellant was based in Queenstown.3
[23] Given Ms Cunninghame explained that her instructions were limited and she sought a timetable for submissions on costs, the appellant submits that the Judge’s failure to afford an opportunity for argument on costs was a breach of natural justice.
That was an error which justified setting aside the decision on appeal as was found in Te Whare O Te Kaitiaki Ngahere Incorporated Society v West Coast Regional Council, where the Environment Court was held to be in error when it struck out claims without hearing from the affected parties to the proceeding.4
[24] I accept that the respondent is right in saying that the present case is different from the circumstances in Te Whare, where the decision to strike out was made without recourse to the parties at all. Nevertheless, I consider there was a failure to allow the appellant a meaningful opportunity to present its evidence and argument on costs and this was a breach of natural justice.
[25] I reach this conclusion because:
(a) Ms Cunninghame explained she was not in a position to argue costs; (b) the matter was scheduled for a mentions hearing only, so the parties
did not anticipate a hearing would occur on the day;
(c) it was signalled that indemnity or increased costs would be sought, so this was not a straightforward costs application; and
(d)the respondent had only filed her affidavit evidence opposing costs shortly before close of business the day before, in breach of District Court rr 7.17 and 7.18, which meant the opportunity to file an affidavit in reply provided for in r 7.19 was precluded.
[26] In short, in all the circumstances, I consider the appellant was, in practical terms, denied the opportunity to be heard on costs, even though it was represented at the hearing by a solicitor acting on agency instructions.
[27] I also do not accept that the appellant could have relied on the letter of
16 December asserting that the application would be consented to by the respondent, leaving only the issue of costs alive. Her position on the application was expressed
conditionally and those conditions were not accepted by the appellant. Until her position was formalised, which did not occur until 19 January 2016, the appellant was not in a position to assume anything. It would have been entirely inefficient to expect the appellant to file full submissions and evidence on all matters, including costs, until the respondent’s position was known. That occurred too late for the appellant to provide a meaningful response.
[28] In short, the appellant’s approach was consistent with the objective of the District Court Rules which is to secure the “just, speedy and inexpensive determination of any proceeding or interlocutory application”. While, no doubt, the District Court Judge’s decision to deal with costs on the day was prompted particularly by the latter two of these considerations, I consider that was done so at the expense of the first and, thus, was in error.
Did the Judge fail to provide reasons for the decision, and if so, was that in error?
[29] The appellant also argues that the District Court Judge erred because he did not give reasons for the cost decision in his judgment, citing the High Court’s decision in CH v SM.5 However, as the respondent points out, that was not a costs decision. The leading authority on whether reasons are required in costs decision is the decision in Manukau Golf Club Inc. v Shoye Venture Ltd, where the Supreme Court held that reasons are not required where costs follow the event.6 It is only where the order represented a departure from the norm that reasons are expected:
[16] We wish to make it clear a court does not have to give reasons for costs orders where it is simply applying the fundamental principle that costs follow the event and the costs awarded are within the normal range applicable to the court. So here had the Court of Appeal awarded costs in the club’s favour on a standard appeal basis, no further explanation would have been required, it is only when something out of the ordinary is being done that some explanation, which may be brief, should be given.
[30] In this case the respondent says that the reasons given, albeit brief, were appropriate as the costs order made by the Court did not represent a departure from
5 CH v SM [2015] NZHC 1599.
6 Manukau Golf Club Inc. v Shoye Venture Ltd [2012] NZSC 109, (2012) 21 PRNZ 186.
the norm. In any event, the Court did turn its mind as to whether this was an appropriate case for indemnity or increased costs saying:
In my view, when I have regard to the overall events and what occurred following the judicial settlement conference, I consider that the [appellant] is entitled to costs against the [respondent] on a scale 2B basis plus out of pocket disbursements.
[31] That general explanation is supplemented by Ms Cunninghame’s affidavit of
22 March 2016 where she says that the Judge commented that “he would award costs on a scale basis because in his view all of the lawyers involved were responsible for what happened”.
[32] In light of Manukau Golf Club, I do not find that the judgment is in error for the failure to give reasons. Any error is derived from the failure to allow the appellant an appropriate opportunity to respond to, and to submit on the belatedly filed evidence of Ms Brook. Had that opportunity been allowed, a more fully reasoned decision, addressing the arguments of the appellant for increased or indemnity costs, would inevitably have resulted.
Should indemnity or increased costs be awarded?
[33] As I have found the Judge was in error in failing to allow the appellant a meaningful opportunity to respond to the respondent’s position on costs, including her belatedly filed evidence, I must reconsider the issue afresh and determine whether the appellant’s claim for increased or indemnity costs is warranted.
[34] Increased and indemnity costs are governed by r 14.6 of the District Court
Rules. The appellant claims indemnity costs under the following ground:
14.6 Increased and indemnity costs
…
(4) the court may order a party to pay indemnity costs if-
(a) the party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending a proceeding or step in a proceeding;
…
[35] It is clear from the authorities that a high threshold must be passed before an order for indemnity costs is to be made. In Bradbury v Westpac Banking Corporation, the Court of Appeal summarised the distinction between the three broad approaches to costs as follows: 7
(a) standard scale applies by default where cause is not shown to depart from it;
(b)increased costs may be ordered where there is a failure by the paying party to act reasonably; and
(c) indemnity costs may be ordered where that party has behaved either badly or very unreasonably.
[36] In Bradbury, the Court of Appeal endorsed Goddard J’s remarks as to some
of the categories in which indemnity costs have been ordered:8
(a) the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud;
(b)particular misconduct that causes loss of time to the court and to other parties;
(c) commencing or continuing proceedings with some ulterior motive;
(d) doing so in wilful disregard of known facts or clearly established law;
or
(e) making allegations which ought never to have been made or unduly prolonging a case by groundless contentions, summarised in
French J’s “hopeless case” test.
7 Bradbury v Westpac Banking Corporation [2009] NZCA 234; [2009] 3 NZLR 400; (2009) 19 PRNZ 385 at [27].
8 At [29].
[37] What the respondent says is that none of these categories apply in this case. Instead there was confusion as to whether or not the claim had been settled. While the respondent now accepts that an agreement was concluded as a result of those negotiations, that was not the advice her lawyer gave her at the time. The position was further complicated by the fact that the defendants provided a draft settlement agreement, and then a variation of that draft, which included terms which could not be said to have been agreed, including a clause requiring confidentiality, a clause purporting to preclude any complaint to the Real Estate Agent’s Authority and a clause which required an indemnity to be given to the parties. In addition, the draft agreement itself provided that it would be operative only on signing the agreement.
[38] The appellant, on the other hand, says that it has had to bear the consequences of the respondent taking an unreasonable position on whether the proceedings had settled. The appellant observed that the desire to extract herself from the settlement seems to have originated from the respondent herself as demonstrated by the first email from her lawyer where he indicated that Ms Brook was “not prepared to settle at $30,000” and although this is “contrary to the indication given last Friday … she is adamant she wishes to continue with the proceedings”.
[39] However, even if, as her affidavit suggests, she relied entirely on advice from counsel that the settlement was not binding, her lawyer’s stance was unreasonable and the appellant should not bear the additional cost that that has caused. Pursuing an unreasonable course of action on counsel’s advice, does not disqualify the appellant from seeking increased or indemnity costs.
[40] Furthermore, she was on notice throughout, that the appellant considered her position unreasonable and, while Mr Parker did not go so far as to suggest that a formal Calderbank offer had been made, there were repeated warnings that indemnity costs would be sought from her if she pursued that course of action. For example, on 14 August 2015, shortly after receiving the respondent’s disavowment of settlement, Ms Cunninghame wrote saying:
Our client and Mr Parker’s client is entitled to insist on specific performance
of the settlement agreement. Any costs which will be incurred as a result of
the approach taken by your client to settlement will be sought from her on an indemnity basis.
[41] On 30 September 2015, a letter was sent from the appellant’s lawyers headed
“without prejudice save as costs”, where it was recorded:
If your client continues to pursue the matter, the defendants will have no alternative but to seek summary judgment on this issue, therefore incurring further costs which will need to be met by your client. We will, of course, be seeking all costs going forward on an indemnity basis.
[42] A further letter sent on 28 October 2015 headed “without prejudice save as to costs”, also warned that unless the respondent confirmed the terms of settlement as agreed on 7 August 2015, the appellant would be seeking an order for costs to date plus all future costs. The same message was reiterated in letters from the appellant’s lawyers on 23 November 2015 and 18 December 2015.
[43] As I have said, I accept the appellant’s submission that the reasonableness of the respondent’s position must be assessed from the stand point of the appellant as conveyed to it through her lawyer. Her asserted reliance on her lawyer’s advice, to say her own conduct was not blameworthy is not relevant to my assessment.
[44] In terms of whether the position advanced by her lawyer was as untenable as Mr Parker suggests, a brief review of the legal position is required. The question is whether the relatively informal exchange of emails following mediation constituted a binding agreement both because all key matters have been agreed to and because the reference to “will sort details on Monday” suggested the agreement was incomplete or was expressly, or implicitly made subject to a formal contract being executed by the parties.
[45] On its own, the statement accepting a payment of $30,000 in full and final settlement of the proceedings is probably sufficient to constitute a binding contract and the absence of mechanical provisions, such as when payment would be made, would not undermine the agreement having contractual force. The Court would be willing to imply conventional terms, such as payment within a reasonable period of time, in order to give effect to the expectations of the parties.
[46] However, the suggestion that the “details will be sorted out later” provides at least a vestige of an argument that the parties intended to postpone any contractual liability until the execution of that formal document and therefore could withdraw until that time.9 In such circumstances the question of whether a binding agreement had been reached would require an examination of the factual context. While I cannot determine the matter, not having heard full evidence on it, the subsequent
conduct of the respondent’s solicitor in advising the Court that the matter had settled, strongly supports the inference that the parties intended to be bound by the exchange of emails.10 That said, the provision of draft settlement agreements by the defendants which included a term that the agreement would not be operative until signed by all parties, points the other way.
[47] All I can conclude on the evidence is that the respondent’s position that a concluded settlement had not been reached was unlikely to succeed, but not so untenable that I consider it falls into the category of the party having “acted vexatiously, frivolously, improperly or unnecessarily” in continuing the proceeding. The law was against her, but not so hopelessly that maintaining it to the point where she conceded should attract the sanction of indemnity costs.
[48] However, that does not dispose of the matter. I still have to consider whether increased costs should be ordered. The appellant claims increased costs in the alternative to indemnity costs on the basis of DCR 14.6(3) which provides:
(3) The court may order a party to pay increased costs if—
(a) the nature of the proceeding or the step in the proceeding is such that the time required by the party claiming costs would substantially exceed the time allocated under band C; or
(b) the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in the proceeding by—
(i) failing to comply with these rules or a direction of the court; or
9 Concorde Enterprises Ltd v Antony Motors (Hutt) Ltd [1981] 2 NZLR 385 (CA).
10 Noting the subsequent conduct of the parties is admissible for the purpose of establishing whether they intended to be bound in Fletcher Challenge Energy Ltd v Electricity Corp of New Zealand Ltd [2002] 2 NZLR 433 (CA) at [56].
(ii) taking or pursuing an unnecessary step or an argument that lacks merit; or
(iii) failing, without reasonable justification, to admit facts, evidence, or documents or accept a legal argument; or
(iv) failing, without reasonable justification, to comply with an order for discovery, a notice for further particulars, a notice for interrogatories, or any other similar requirement under these rules; or
(v) failing, without reasonable justification, to accept an offer of settlement, whether in the form of an offer under rule 14.10 or some other offer to settle or dispose of the proceeding; or
(c) the proceeding is of general importance to persons other than just the parties and it was reasonably necessary for the party claiming costs to bring the proceeding or participate in the proceeding in the interests of those affected; or
(d) some other reason exists that justifies the court making an order for increased costs despite the principle that the determination of costs should be predictable and expeditious.
[49] I consider there are grounds for an increased award of costs on the basis that, from 7 August 2015, while her position did not reach the threshold for indemnity cause of behaving “badly or very unreasonably” there was in the circumstances a demonstrable failure to act reasonably.
[50] Here I take particular account of the full explanations provided of the competing legal position advanced by the appellant and the clear and repeated warnings that indemnity costs would be sought. I consider in light of these factors, and the respondents belated concession that her claim should be struck out, increased costs are warranted. The respondent’s position did increase the costs of the litigation after the settlement conference. The appellant was required to incur the cost of filing the application to have her claim struck out and, even then, it was only on the day before the matter was first called, that she finally formally conceded the position that the agreement reached on 7 August 2015 was binding.
[51] I am satisfied that she persisted with her claim unreasonably in the interim causing the appellant significant additional expense when, had the concession made
on 19 January 2016 been made some months earlier, most of that cost would not have been expended.
[52] The approach for determining increased costs is set out in Holdfast NZ Ltd v
Selleys Pty Ltd.11 The approach involves the following steps. They are: (a) categorising the proceeding under r 14.3;
(b)identifying a reasonable time for each step in the proceeding under r 14.5;
(c) having made that calculation, considering whether there are grounds for awarding increased costs as set out in r 14.6(3) because “the party opposing costs has contributed unreasonably to the time or expense of the proceeding or step in the proceeding”;
(d)where such conduct is made out, the Court’s response should be to provide an uplift on scale costs to what the rules contemplate a reasonable fee for that step to be and, in normal circumstances, an uplift of no more than 50 per cent would be applied given that scale costs are intended to represent “two thirds of the daily rate considered reasonable in relation to the proceeding” although, an uplift of more than 50 per cent could not be ruled out.
[53] In the circumstances, I consider that the proceedings were appropriately categorised as 2B. However, the calculated 2B costs award should be uplifted by
100 per cent. While I acknowledge that very few cases contemplate an uplift of more than 50 per cent,12 in this case I consider a 100 per cent uplift is warranted. My reasons for concluding this are:
(a) this will still be a long way short of the appellant’s actual costs of around $19,000 which were incurred post settlement;
11 Holdfast NZ Ltd v Selleys Pty Ltd (2005) 17 PRNZ 897 (CA).
12 An example where a greater uplift was given is McWilliam Consulting Group Ltd v Keith Ussher
Architecture Services Ltd
(b)the appellant’s legal costs reasonably included protracted attempts to progress the settlement which the appellant considered had been reached;
(c) the scale costs award will only reflect the formal steps taken of filing
the application to strike out the plaintiff ’s claim and attend the
20 January hearing and costs awarded for in those steps do not fairly
reflect the additional cost prompted by the plaintiff’s stance;
(d)the respondent was clearly on notice that her stance would prompt an application for increased or indemnity costs; and
(e) while I have not found this case meets the high threshold required for an award of indemnity costs, I nevertheless consider the respondent’s stance was not reasonable, by some margin. This is a case where the behaviour sits close on the spectrum to the kind of behaviour which might warrant indemnity costs.
Outcome
[54] The appeal is allowed. The appellant is entitled to 2B costs on steps taken after 7 August 2015, with a 100 per cent uplift, plus disbursements.
[55] The appellant has also sought costs on this appeal. I reserve that issue should the parties not be able to reach agreement. To aid discussion, my tentative view is that the appeal was conventionally and responsibly run by the respondent. I therefore see no reason to depart from a conventional award of 2B costs. However, I would exclude costs for the appellant’s application to adduce further evidence which was granted as a form of indulgence.
Solicitors:
Parker Cowan, Queenstown
Craig Paddon, Dunedin
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